Stockley v. United States

• Citation: 271 F. 632
• Decision Date: 24 March 1921
• Docket Number: 3521.
• Parties: STOCKLEY et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

271 F. 632

STOCKLEY et al. v. UNITED STATES.

No. 3521.

United States Court of Appeals, Fifth Circuit.

March 24, 1921

J. A Thigpen and S. L. Harold, both of Shreveport, La., for appellants.

Robert A. Hunter, Sp. Asst. Atty. Gen., for appellee.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

On August 2, 1917, the United States filed a bill in equity in the United States District Court for the Western District of Louisiana, at Shreveport, against Thomas J. Stockley, and certain persons claiming under an oil lease executed by him seeking a decree declaring the United States to be the owner of lot 5 of section 5 in township 20 N., range 16 W situated in the parish of Caddo, La., containing 29.87 acres as per plat of survey approved March 28, 1917, by Clay Tallman, Commissioner of the General Land Office, and ex officio Surveyor General for the state of Louisiana, for an accounting for the oil and gas taken from said lot, and for injunction.

The defendants denied the title of the government, and asserted that the land was a homestead owned by said Stockley; that he had made entry on November 13, 1905, and on January 5, 1909, final proof, and had received the receiver's receipt upon final entry on January 16, 1909; that more than two years had elapsed since said final entry, without any contest or protest being initiated, wherefore under the act of Congress approved March 3, 1891 (26 Stat. 1095, c. 561), he had become the absolute owner and entitled to patent thereto; that on March 17, 1910, he had executed a mineral lease to the Gulf Refining Company of Louisiana. The defendants admitted the production of oil from said lands by the Gulf Refining Company, and the amount thereof, and the payment of royalties to Stockley, to W. H. Henderson, Jr., a transferee of Stockley, and to Natalie Oil Company, another transferee of Stockley.

The facts showed: That in 1897 Stockley settled on said land. That on November 13, 1905, he filed his first homestead entry. He lived on said land until a few months before making his final entry. He built a two-room house thereon and cultivated a part of the land. On December 15, 1908, this land, with others, was, 'subject to existing valid claims, withdrawn from settlement and entry, or other form of appropriation,' by executive order. On the same day, referring to this order, the local register and receiver were instructed by the General Land Office that no rights could be obtained by any proceeding or claim initiated thereafter and that they must reject all such applications, selections, or entries, subject to appeal. That all such applications, selections, entries, and proofs based upon selections, settlements, or rights made prior to the date of withdrawal--

'may be received by you and allowed to proceed under the rules up to and including the submission of final proofs. You must not, however, in such cases receive the purchase money or issue final certificates of entry, but must suspend the entries and proofs pending investigation as to the validity of the claims with regard to the character of the land and compliance with the law in other respects. You will place such suspended cases in a file in your office, and for the information of this office prepare and forward a schedule thereof with your monthly returns. * * * '

On January 16, 1909, Stockley filed the nonmineral affidavit prescribed to be made for final entry, in which among other things he swore:

'That the land is essentially nonmineral land; that this application therefor is not made for the purpose of fraudulently obtaining title to mineral land, but with the object of securing said land for agricultural purposes.'

At the time of filing this affidavit he paid to the receiver of public moneys the sum of $3.01 and received a receipt reciting its payment--

"in connection with Hd. Final, Serial No. 1088, for [describing
land] 71.25 acres at 1.25 per acre,$______.
Fees
Commissions ........................................	$1.76
Testimony fees, etc.................................	1.25
	-----------
	$3.01
Less com's suspended in unofficial mys. (moneys)....	1.76
	-----------
	$1.25

"C. J. Greene, Receiver of Public Moneys."

No certificate of the register accepting the final proofs was made. On February 27, 1912, a contest of Stockley's entry was ordered by the Commissioner of the General Land Office on the ground that the land was mineral, being chiefly valuable for oil and gas, and that Stockley knew facts sufficient to charge him, as an ordinarily prudent man, with notice that the tract contained deposits of oil and gas and was chiefly valuable therefor. On such hearing the register and receiver recommended that the patent issue, but the Commissioner reversed this holding, and on Stockley's appeal the Secretary of the Interior sustained the Commissioner's ruling.

The lapse of two years from the date of Greene's receipt was urged as preventing the denial of the patent. But the Secretary ruled that under the withdrawal order of December 15, 1908, and the instructions forbidding the receiver to receive a final payment, and in the absence of a certificate from the register, there had been no final entry, nor payment on final entry, so as to bring this case within the operation of the Act of March 3, 1891.

The Secretary, however, found that the entry of Stockley had been made in 1905 in good faith, and therefore ordered that he be issued a surface patent under the provisions of the Act of July 17, 1914 (Comp. St. Secs. 4640a-4640c), reserving all minerals to the United States. Stockley declined the surface patent. The District Court overruled the plea that the United States was barred by the two-year limitation of the Act of March 3, 1891 (26 Stat. 1095-1099).

The case was referred to a master, who found the facts in favor of the contention of the United States and recommended a decree adjudging the title to the lands in them, and also finding mesne profits against the defendants respectively in certain sums. The court has so decreed.

The defendants appeal, insisting: (1) That under the Act of March 3, 1891, Stockley is entitled to a patent and consequently has complete equitable title to the property. (2) That his homestead entry was never affected by the order of withdrawal. (3) That the orders of the Secretary of the Interior and Commissioner of the General Land Office were illegal, null, and void, the decision of the legal register and local receiver not having been appealed from. (4) That said decisions are null and void because the land in question was not mineral at the time of final entry, and that there was no evidence so showing.

1. The rights of the Executive to withdraw lands from entry, settlement, or other forms of appropriation, without special authority from the Congress, is no longer open to question. Sustaining the power of the Executive, the Supreme Court of the United States has said:

'The Executive, as agent, was in charge of the public domain. By a multitude of orders, extending over a long period of time and affecting vast bodies of land, in many states and territories, he withdrew large areas in the public interest. These orders were known to Congress, as principal, and in not a single instance was the act of the agent disapproved. Its acquiescence all the more readily operated as an implied grant of power, in view of the fact that its exercise was not only useful to the public, but did not interfere with any vested right of the citizen. ' United States v. Midwest Oil Co., 236 U.S. 459, 475, 35 Sup.Ct. 309, 314 (59 L.Ed. 673.)

The action of the Secretary of the Interior is a proper method of exercising the power of the President, and is to be taken as his act. United States v. Morrison, 240 U.S. 192, 36 Sup.Ct. 326, 60 L.Ed. 599.

2. We do not think that this case falls under Act of March 3, 1891, or that there had ever been issued a receipt of the receiver on final entry. According to the testimony in this case, to constitute a final entry, the papers are submitted to the local register and local receiver. If approved by them, the register issues a certificate and the papers are sent to the General Land Office.

That the final entry is not made until the certificate of the register is issued is apparent from the ruling of the Interior Department:

'The proviso has reference solely to entries upon which final certificate has issued. Hence, any action that was taken with reference to this entry prior to the issuance of the final certificate cannot be considered as affecting the question whether the entry was or was not confirmed, as the action contemplated by the statute must be taken with reference to the final entry. No case is brought within the terms of the act until after the final certificate has been issued. That fixes the period within which action must be taken to defeat confirmation under the proviso. ' Ira M. Bond, 15 Land Dec. 228.

'The language of the statute is, 'After the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry,' and when there shall be no pending contest or protest against the validity of 'such entry' the entryman shall be entitled to a patent. This case was not brought within the terms of the act until the issuance of the final certificate March 6, 1893. To defeat the confirmation it was necessary that some action should have been taken against that entry, within two years from that date. ' Azariah W. Colburn et al., 29 Land Decisions, 539.

'It is too much to say that the mere offering of final proof by an entryman, together with the final commissions or the price of the land, constitutes a final

...